A “libel reading” is a form of content review where an attorney is reading a book or passage specifically to assess the risk of libel.
What is libel? Libel is a published false statement damaging to a person’s reputation.
So, the attorney is looking for statements that would, if published without revision, be damaging to a person’s reputation. If a statement identifies a person (even by description or association), and says something that could damage the reputation of someone other than the author, the attorney will flag it.
Then, the attorney will work with the author to determine what course of action to take. The libel attorney may eventually okay the passage, suggest a revision of the risky passage or suggest its elimination altogether.
Even where an attorney “okays” or “signs off” on a passage, they aren’t saying: “this is risk-free!” Rather, they are saying that with the information they have, if the statement is critical to the book, they and the author have taken every reasonable step to mitigate risks.
How do you mitigate risks? The easiest way is to eliminate the statement that creates the risk. If the statement is critical to the story or book, then, the lawyer will go through some specific analytical steps to minimize the risk:
- Consider the evidence. Truth is an absolute defense to libel. That is, a statement is only libel if it is false. If it is true, it is not libel. So, a libel review attorney will review all of the author’s notes and records to determine if there is enough evidence to show a court or factfinder that the statement is provably true. Some documents hold more weight than others. For example, if I write “John is a murderer” that is a potentially libelous statement. If John was convicted of murder and the appeal denied, and I have depended on those findings to write the statement, the risk goes down considerably.
- Consider the subject. This really is key. Who is the statement about? This matters for a couple of reasons:
- Different types of people are subject to different standards. Public figures have to prove a higher level of “fault” in order to recover in a lawsuit for libel. Specifically, public figures and those at the center of matters of public concern have to show “actual malice” where private figures need only show “negligence”. Actual malice includes knowledge of falsity, extreme deviation from professional standards or reckless disregard for the truth (which could be a failure to investigate or seek comment, reliance on a biased source, etc.). By contrast, negligence means only a failure to observe a reasonable level of care in publishing the statement. What is reasonable could turn on the amount of research, attempts to verify, quality of sources or other general journalist practices.
- Some types of people are more likely to sue. Who is most likely to sue for libel? Generally speaking, professionals and others whose livelihood depends largely on public perception of them are much more likely to file a suit. People with a history of litigious behavior are more likely to continue their pattern and sue. Finally, crazy people are likely to sue (though they may or may not have a case, and often will not have an attorney representing them).
- Consider the subject matter. This is different than the subject (who the statement is about). This is what the statement is about. If the subject is a matter of public concern, the level of fault increases (as described above). For example, a statement about a security guard at a mall is about a private figure. If the statement is about that security guard’s potential involvement in a terrorist act, that statement is about a matter of public concern and, for that limited purpose, that private figure may be considered a public figure.
- Consider the value of the statement. How critical is this to the overall work? If this is a flippant comment about or a crude attack on a particular person who is tangential to the primary story, it can easily be cut. If the work is an expose on a particular office or person that focuses exclusively on one identified person but the writer feels the public needs to know, then statements that are potentially libelous need to stay in and the attorney reviewing them will need to focus on shoring up evidence supporting each statement.
What if the statement is an opinion? Then it is not libel. If it is not an assertion of fact, it is not provably true or false and therefore is not libel. However, a statement cannot simply be couched as opinion to escape liability. Saying “I think”, without more, probably is not enough – though every case is different.
Hyperbole is also not libel. So, statements like “John is the worst!”, “Everyone hates John!” and “John is a pig!” are probably not actionable.
A good libel review attorney should provide an initial read, follow up discussion as needed, a thorough review of supporting notes and documents, assistance with revisions as needed and a final read.
